Questions and Answers about Mobilization for State Service and Rights of Guardmembers
1. What rights does an organized militia member ordered to State service have to protect their job?
2. What happens if an organized militia member is injured while performing State service?
4. Do the protections of the law apply to a temporary employee?
5. Does the law give any protections after an organized militia member returns to work?
6. How can an organized militia member enforce the law if an employer violates it?
7. Does the law provide any other protections?
8. What happens to my medical benefits while I am on state active duty?
Questions and Answers About Paid Leaves of Absence for Public Employees While Performing Military Duty
1. Are other military members entitled to paid leaves of absence for military duty?
2. Does it matter whether the active duty for National Guard members is Federal or State
service?3. Must an employer pay military members for “drill weekends” or inactive duty training?
Uniformed Services Employment and Reemployment Act (USERRA) Facts, Questions and Answers for Employers
2. Can an employer refuse to allow an employee to attend scheduled drills or annual training?
3. Is there a limit to the amount of military leave an employer must permit?
4. What is not included in the 5-year cumulative total?
5. Is prior notice to the employer required for leave of absence for military duty?
6. What are valid military orders?
7. When may an employer require an employee to provide official, written military orders?
12. Is an employer required to pay an employee who is on military leave of absence?
13. Are there time limits for an employee to return to work after completion of military duty?
14. After completion of weekend drill, what is the time limit for an employee to return to work?
17. What if an employee is injured or incurs a disability during military duty?
18. What job position is an employee returned to after military leave of absence?
Questions and Answers about Mobilization for State Service and Rights of Guardmembers 1. What rights does an organized militia member ordered to State service have to protect their job?
250.48 f.s. Leaves of absence.–Any officer or employee of the state, of any county or school district of the state, or of any municipality or political subdivision of the state who is a member of the Florida National Guard is entitled to leave of absence from his or her respective duties, without loss of pay, time, or efficiency rating, on all days during which the officer or employee is engaged in active state duty for a named event, declared disaster, or operation pursuant to s. 250.28 or s. 252.36. However, a leave of absence without loss of pay granted under this section may not exceed 30 days for each emergency or disaster, as established by executive order.
250.481 f.s. Reserve components; employment discrimination prohibited.–Any person who seeks or holds an employment position may not be denied employment or retention in employment, or any promotion or advantage of employment, because of any obligation as a member of a reserve component of the Armed Forces.
250.4815 f.s. Professional license of servicemember not to expire while member on federal active duty.–A professional license issued in the state to any member of the Florida National Guard or the United States Armed Forces Reserves shall not expire while the member is serving on federal active duty and shall be extended for up to 90 days after his or her return from federal active duty. If the license is renewed during the 90-day period after his or her return from federal active duty, the member shall only be responsible for normal fees and activities relating to renewal of the license and shall not be charged any additional costs such as, but not limited to, late fees or delinquency fees. The member must present to the authority issuing the professional license a copy of his or her official military orders or a written verification from the member’s commanding officer before the end of the 90-day period in order to qualify for the extension.
250.482 f.s. Troops ordered into state active service; not to be penalized by employers and postsecondary institutions.–
(1) If a member of the Florida National Guard is ordered into state active duty pursuant to this chapter, a private or public employer, or an employing or appointing authority of this state, its counties, school districts, municipalities, political subdivisions, career centers, community colleges, or universities, may not discharge, reprimand, or in any other way penalize such member because of his or her absence by reason of state active duty.
(2) If the Adjutant General certifies that there is probable cause to believe there has been a violation of this section, an employee who has been employed for a period of at least 1 year prior to being ordered into state active duty so injured by a violation of this section may bring civil action against an employer violating this section in a court of competent jurisdiction of the county in which the alleged violator resides or has his or her principal place of business, or in the county wherein the alleged violation occurred. Upon adverse adjudication, the defendant is liable for actual damages or $500, whichever is greater. The prevailing party in any litigation proceedings is entitled to recover reasonable attorney’s fees and court costs.
(3) The certification of probable cause may not be issued until the Adjutant General, or his or her designee, has investigated the issues. All employers and other personnel involved with the issues of such investigation must cooperate with the Adjutant General in the investigation.
2. What happens if an organized militia member is injured while performing State service?
Every member of the Florida National Guard who is injured or disabled while on state active duty must be furnished medical attention and necessary hospitalization at the expense of the state, and must be continued in a pay status on state active duty until a board of inquiry, appointed by the Adjutant General, determines that the disability no longer justifies such pay, hospitalization, or medical attention. However, such pay, hospitalization, or medical attention may not be provided for more than 1 year after the date that the injury or disability was incurred; and the injury or disability must have been incurred in the line of duty, may not have been due to the misconduct of the individual who was injured or disabled, and may not be a preexisting condition.
3. What is the status of the organized militia member with the employer while they are performing State active duty?
They are to be treated as if they were on furlough or leave of absence and are to be treated the same as any other employee on leave of absence, no better and no worse.
The organized militia member does not lose seniority or any pay increases given to other employees while he or she is performing military duty.
If other employees on leave of absence are entitled to keep insurance, those performing military service are also entitled to do so. If other employees do not get to keep insurance, then the organized militia member does not get to keep insurance.4. Do the protections of the law apply to a temporary employee?
No, temporary employees have no reemployment protections.
5. Does the law give any protections after an organized militia member returns to work?
Yes, they may not be fired except for cause for one year after returning to work.
6. How can an organized militia member enforce the law if an employer violates it?
The Superior Court is empowered to grant relief. This class of cases must be moved to the front of the calendar and the $175 filing fee is waived. In some cases, the organized
militia member’s case may be prosecuted by the Attorney General on the member’s behalf.7. Does the law provide any other protections?
Yes. There are specific provisions providing for stays of pending litigation, potentially allowing for the termination of leases, giving some protection against eviction, but the
law does not allow an organized militia member to stop paying their debts.8. What happens to my medical benefits while I am on state active duty?
By federal law, all employers
must maintain your medical benefits for 30 days after leaving your employment.
After 30 days, under COBRA, you are entitled to continue said coverage
at your own expense. If you are a State, county or municipal employee,
you are entitled to 90 days paid military leave, therefore the 30 day
period above does not begin until your military leave is exhausted. If
you are covered by an employer offering differential pay that pay may
cover the continuation of your medical benefits as if you never left employment.
You should go over your individual situation with your employer to see
what your coverage is and what you have to do to protect yourself and
your family.
Questions and Answers About Paid Leaves of Absence for Public Employees While
Performing Military DutyIn accordance
with both federal and State law, military members are entitled to excused leaves of absence when performing military duty. There is no requirement to grant paid leaves of absence under federal law.1. Are other military members entitled to paid leaves of absence for military duty?
Yes, members of the Reserve components,(Army, Air Force, Marine or Coast Guard Reserve), or other organization affiliated therewith, which includes National Guard members from states other than Florida, are entitled to paid leaves of absence (full pay in addition to their military pay) for up to 30 work days per calendar year when performing any kind of federal active duty. (Federal Active Duty includes active duty pursuant to Title 10 or Title 32 of the United States Code)
2. Does it matter whether the active duty for National Guard members is Federal or State service?
No, National Guard members, by federal and state law, are ordered to federal duty by or with the consent of the Governor.
3. Must an employer pay military members for “drill weekends” or inactive duty training?
No, neither members of the Florida National Guard, Naval Militia and State Guard nor members of Reserve components are entitled to pay for drills. However, employers
must grant excused leaves of absence (or otherwise accommodate the employees
work schedule) in accordance with federal and state law.
Uniformed Services Employment and Remployment Rights Act Facts, Questions and Answers for Employers The information provided below should not be considered legal authority, but is provided as general information about the Uniformed Services Employment and Reemployment Rights Act (USERRA).
1. Is an employee protected from unlawful discrimination by an employer based
on military affiliation?Yes. USERRA provides protections for initial hiring and adverse employment actions by an employer if the action relates even in part to the employee’s military service. This protection also extends to potential witnesses of a discriminatory action on the part of the employer.
2. Can an employer refuse to allow an employee to attend scheduled drills or
annual training?No. Employees must be excused from work to attend inactive duty training (drill) or annual training and the employer must treat the employee as if he or she has not been absent.
3. Is there a limit to the amount of military leave an employer must permit?
Yes. Although there is no longer any differentiation between voluntary and involuntary military duty, there is a 5-year cumulative service limit on the amount of voluntary military leave an employee can use and still retain reemployment rights.
4. What is not included in the 5-year cumulative total?
The 5-year total does not include: inactive duty training (drills), annual training, involuntary recall to active duty, or additional training requirements determined and certified in writing by the Service Secretary, and considered to be necessary for professional development or for completion of skill training or retraining.
5. Is prior notice to the employer required for leave of absence for military duty?
Yes. Unless precluded by military necessity, advance notice must be provided either orally or in writing. The context for what constitutes timeliness of notification was not spelled out in detail by Congress under USERRA. However, employees who participate in the National Guard or Reserve should provide their employers as much advance notice as possible. Failure to provide notice could result in a denial of the protection of USERRA.
6. What are valid military orders?
All written or verbal orders are considered valid when issued by competent military authority. A military member in receipt of official orders is obligated by federal statute to execute them. The recurring requirement to perform inactive duty training (drill) is an example of when written orders may not be formally issued.
7. When may an employer require an employee to provide official, written military
orders?After periods of military leave of absence for more than 30 days, the employer has the right to request such documentation, which can be used to establish the employee’s basic eligibility for protection under USERRA. All National Guard and Reserve members are encouraged to provide a copy of orders, the annual drill schedule, or other type of documentation to employers as soon as available and, if possible, before the commencement of military duty.
8. What if the employee cannot provide satisfactory documentation for military
service in excess of 30 days?The employer must promptly reinstate the employee pending its availability. The employer may contact the military unit if necessary.
9. Can an employer require an employee to apply for military leave of absence or otherwise submit official documentation for approval of military leave of absence?
No. As stated earlier, an employer may not require documentation for notification prior to military duty. Further, an employer does not have a “right of refusal” for military leave of absence, so long as the employee has not exceeded the 5 years of cumulative service provided under USERRA.
10. Can an employee be required to find someone to cover his or her work period
when military duty interrupts the work schedule?No, an employee is responsible for notification but not for altering the work schedule or finding a replacement.
11. Can an employer require an employee to reschedule drills, annual training,
or any other military duty obligation?No. When military duties would require an employee to be absent from work for an extended period, during times of acute need, or when (in light of previous leaves) the requested military leave is cumulatively burdensome, the employer may contact the military commander of the employee’s military unit to determine if the duty could be rescheduled or performed by another member. If the military commander determines that the military duty cannot be rescheduled or canceled, the employer is required to permit the employee
to perform his or her military duty.12. Is an employer required to pay an employee who is on military leave of absence?
No. While many employers offer differential pay or a specific number of paid military leave days, an employer is not required to pay an employee on military leave of absence.
13. Are there time limits for an employee to return to work after completion of military duty?
Yes. There are three formats for reinstatement (application for reemployment), dependent on the duration of military service. Please refer to question 15 for a detailed breakdown of these formats. An employer should reinstate an employee within a matter of days of application, if not on the same day as the application is made.
14. After completion of weekend drill, what is the time limit for an employee
to return to work?Either the the beginning of the next regularly scheduled work day or during that portion of the next regularly scheduled shift that would fall eight hours after the end of drill and a reasonable amount of time to commute home. For example, an employer cannot require a service member who returns home at 10 p.m. to report to work 2.5 hours later at 12:30 a.m. However, the employer can require the employee to report for the 6 a.m. shift, or scheduled
work period, the next morning (after reasonable commute from military duty to home followed by 8-hours). Included in the 8 hour period is time for rest and the commute to work.15. What is the time limit for an employee to return to work after Annual Training
or other types of extended military leave of absence?Time limits for returning to work depend on the duration of the orders. The rules are:
Service of 1 to 30 days: the beginning of the first regularly scheduled work day or 8 hours after the end of the military duty, plus reasonable commuting time from the military duty station to home. Service of 31 to 180 days: application for reinstatement must be submitted not later than 14 days after completion of military duty.
Service of 181 or more days: application for reinstatement must be submitted not
later than 90 days after completion of military duty.16. What if the employee has an accident, is delayed by lack of military transportation, or is otherwise unable to report back in a timely manner?
The employee must report back to work as soon as possible. If the reason for the employee’s delay is not related to military duties, the employee is subject to the personnel policies and practices the employer would normally apply to employees with unexcused absences.
17. What if an employee is injured or incurs a disability during military duty?
The deadline for reinstatement may be extended for up to 2 years for persons who are convalescing due to a disability incurred or aggravated during military service, and employers must make reasonable accommodations for the impairment.
18. What job position is an employee returned to after military leave of absence?
Except with respect to persons whose disability occurred in or was aggravated by military service, the position into which an employee is reinstated is determined by priority, based on the length of military service. The rules are: Service of 1 to 90 days: (a) in the job the person would have held had he or she remained continuously employed (possibly a promoted position), so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer, or (b), if the person cannot become qualified, in the position the person was employed on the date of the commencement of the military service. Service of 91 or more days: (a) same as for service of 1 to 90 days, or a position of like seniority, status and pay, so long as he or she is qualified, or (b) if the person cannot become qualified, in the position the person was employed on the date of the commencement of the military service or which nearly approximates that position.
Note:
The reemployment position with the highest priority reflects the “escalator” principle, which requires that a returning service member steps back onto the seniority escalator at the point the person would have occupied if the person had remained continuously employed.USERRA specifies that returning employees must be “promptly reemployed.” What is prompt will depend on individual circumstances. Reinstatement after 3 years on active duty might require two weeks to allow giving notice to an incumbent employee who might have to vacate the position.
Important
Note. Through the National Committee for Employer Support of the Guard and Reserve (ESGR), the Department of Defense (DoD) works hard to obtain and sustain employer and community support for National Guard and Reserve members who periodically are absent from their civilian jobs to perform
military duty. If you have a question about employment rights, the experts- DoD, the U.S. Department of Labor Veterans’ Employment and Training Service (VETS), and ESGR-suggest you start by contacting ESGR. This is not only your best option for speedy resolution; it protects all your levels of appeal if they are needed.
